As the global gaming industry evolves far beyond entertainment into a sophisticated IP ecosystem built on software, art, music, branding, and competitive digital economies, conversations on questions of classification, cloning, and enforcement are becoming increasingly relevant. Reflecting on his experience attending the University of Geneva’s 2026 IP conference, Dhritiraj Paul Choudhary explains how jurisdictions across the world are actively rethinking copyright enforcement and classification in response to the commercial and technological realities of modern gaming, while Indian copyright jurisprudence has only just begun engaging with these questions. Dhritiraj is a Legal Associate at Boudhik Group and holds an LL.M. in Intellectual Property Law and Management from the WIPO–NLUD–IPO Joint Masters programme. His area of interest includes media/entertainment law (specifically gaming and esports entertainment). He has the following disclaimer to add with regard to his participation in the conference: I was invited as a guest observer by the host Prof. Jacques De Werra, who was my former professor in NLU Delhi. I did not have any role as an organiser, speaker, or panellist at the event.
Copyright Enforcement in the Gaming Industry: Key Takeaways from the University of Geneva’s 2026 IP Conference from an Indian Observer’s Perspective
By Dhritiraj Paul Choudhury
The gaming industry is, by most standards, the biggest entertainment industry in the world, generating more revenue than the global box office and music streaming combined. Esports, its competitive arm, has grown into a multi-billion-dollar ecosystem of its own, with prize pools, broadcasting deals, and sponsorship revenues comparable to those of well-known traditional sports.
India is claiming a bigger share of this landscape. Homegrown studios are building their own IP, such as nCore Games’ FAU-G and Gametion’s Ludo King, and Indian esports is thriving on the back of institutional support and legal recognition. Yet the IP issues at the heart of this industry remain mostly unexplored in India, even as courts elsewhere are actively developing their IP jurisprudence in this field.
These concerns came into sharper focus for me after attending, as a guest observer, the University of Geneva Faculty of Law’s annual IP conference (“Journée de Droit de la Propriété Intellectuelle (JDPI)”) on 12 February 2026, organised by Prof. Jacques de Werra on the theme “IP in the Gaming Industry.” The conference brought together leading practitioners, academics, and institutional representatives, offering a detailed overview of the current IP developments influencing the global video game industry. Rather than attempting a deep dive into each of the presentations and industry commentaries delivered at the conference, this post draws selectively from those discussions most directly relevant to three questions: how video games are classified for copyright purposes across major jurisdictions, what enforcement tools courts have developed against IP infringement in games, and where Indian law stands in relation to these global developments.
Video Games as Multi-Layered IP Structures: the Problem of Definition
Mr. Rafael Ferraz Vazquez, Legal Officer at WIPO’s Copyright Law Division, opened with the problem of defining a video game as a work for the purpose of copyright law.
He characterised video games as composite works that resist clean categorisation: a single game consists of software code, visual art, music, narrative text, and interactive mechanics, integrated into a cohesive experience. Different jurisdictions, he observed, have responded to this composite character in different ways.
The European Union acknowledges the composite nature of video games and protects the whole by adding up the protectable elements. The United States courts have mostly classified video games as “audiovisual works” but are also willing to assess the “total concept and feel” of the game while analysing infringement, assessing the predominant element in the game. The United Kingdom protects creative elements within a video game by classifying them within the existing statutory taxonomy.
Litigation Trends and Enforcement Challenges: Lessons from the US
Ms. Stacey Chuvaeva, Esq., Associate at Mitchell Silberberg & Knupp LLP, surveyed recent US lawsuits in her talk on “U.S. Gaming Industry Radar: Clones, Anti-Piracy Enforcement, and AI”. She drew particular attention to Upper Deck Co. v. Ryan Milton (W.D. Wash., Oct. 2025) in which Upper Deck contended that Disney’s Lorcana copied gameplay of its trading card game Rush of Ikorr. Upper Deck relied on Atari v. North American Philips, where the Seventh Circuit had recognised PAC-MAN’s ‘gobbler’ and ‘ghost monsters’ as ‘wholly fanciful creations, without reference to the real world,’ so that the maze-chase mechanic (PAC-MAN’s gameplay of guiding the gobbler through a maze, eating dots while being chased by ghosts), though unprotectable on its own, was lifted into copyright protection through the way the game expressed it. Applying the principle of idea-expression dichotomy, the Court held that Rush of Ikorr v2.6 offered no comparable expressive elements. Its mechanics were ordinary rules common to trading card games, and did not comprise of anything artistic.
As Ms. Chuvaeva drew out by way of contrast, a different approach could be observed in Sony Interactive Entertainment LLC v. Tencent Holdings Ltd. (N.D. Cal., July 2025), where the claims centred around “cumulative audiovisual expression” rather than over a singular asset. Sony alleged that Tencent’s Light of Motiram was a “slavish clone” of the Horizon series. The dispute culminated in a private settlement in December 2025. Even without a decision on the merits, the trajectory suggests that US courts might come across more infringement claims based on the overall visual and thematic identity of a game. Slavish imitations of this kind, commonly known as clone games, are a recurrent phenomenon in the industry: cheap copies made to free-ride on an original’s popularity.
Another weapon in the US enforcement arsenal, also surveyed by Ms. Chuvaeva, is the doctrine of “selection and arrangement.” Drawing on Metcalf v. Bochco (where the Ninth Circuit recognised that “the presence of so many generic similarities and the common patterns in which they arise” could help satisfy the extrinsic substantial-similarity test) and Skidmore v. Led Zeppelin (952 F.3d 1051, 9th Cir. 2020) {recognizing that combinations of unprotectable elements may be protectable when they are combined in a specific creative arrangement}. Doctrine of selection and arrangement in the US allows proprietary assets within a game to be protected by virtue of how they are selected and arranged. A colour palette, a hole-based puzzle mechanic, or a specific icon may each be unprotectable on their own, but when they are all present in the same game and arranged in a specific way, they can constitute protectable creative expression.
Litigation Trends: Developments in the EU
The US approach relies heavily on copyright doctrines such as “selection and arrangement” and “total concept and feel” which place the substantive question (what is being copied?) at the centre of the dispute. The European Union, by contrast, has approached the problem from a structural angle: it has, through the CJEU, recognised that a video game cannot be reduced to its underlying software and must therefore be protected under more than one copyright directive.
In Nintendo v. PC Box (Case C-355/12, 2014), the CJEU held that video games are “complex matter” comprising graphic and sound elements with their own creative value. They are accordingly protected not only under the Software Directive (Directive 2009/24/EC) which protects computer programs as literary works but also under the broader InfoSoc Directive (Directive 2001/29/EC), which harmonises copyright across the audiovisual, artistic, and other creative components of a work. The Software Directive is concerned solely with source and object code and the broader InfoSoc Directive extends to graphics, music, narrative, and the audiovisual whole. Recognising that video games engage both layers means that rights holders can enforce over the entire game as a composite work rather than litigating each element separately.
Prof. Philippe Mouron and Prof. Gaylor Rabu, who presented the EU perspective, drew attention to development in French practice that is reshaping authorship attribution: the “collective work” regime, under which authorship is attributed to the entity that initiated and financed the work. Originally an exception in French copyright law, this regime has now become the dominant model in the French video games industry.
Where Does India Stand
Although the conference did not feature an Indian perspective, a reading of the Copyright Act 1957 makes it clear that video games are not expressly protected as a single, unified work, and it remains uncertain whether a video game can qualify as a ‘cinematograph work’ so as to receive protection as a whole under the Act. In the absence of clear protection, IP enforcement becomes extremely difficult: copycats and free-riders operate with greater ease, R&D is discouraged, and investment becomes risky.
As other jurisdictions continue to shape this area of law through litigation involving video games, India too must reconsider whether its existing legal framework is adequate for the realities of the digital entertainment era.
A telling instance of mismatch between the existing legal framework and the digital reality can be seen in the case Mattel, Inc. & Ors. v. Mr. Jayant Agarwalla & Ors., where Mattel, the rights holder in the board game Scrabble, sued the Agarwalla brothers, two Indian developers who had created Scrabulous, an online version of the game on Facebook that replicated Scrabble’s tile layout, colour scheme, grid design, and rules. The Delhi High Court granted an injunction on trademark grounds, finding “Scrabulous” deceptively similar to “Scrabble.” The copyright outcome, however, was less reassuring. The court held that Mattel had lost copyright protection under Section 15(2) because it had not registered its board design under the Designs Act and the design had been reproduced more than fifty times through an industrial process. After that point, copyright could no longer protect the game board as an artistic work capable of registration as a design. The developers continued operating their game under the name Lexulous.
The difficulties do not end with classification and copyright-design interface. The “selection and arrangement” doctrine, which is used as a legal tool in the US for combating game cloning, faces a significantly higher threshold in India. In Eastern Book Company v. D.B. Modak ((2008) 1 SCC 1), the Supreme Court held that selection and arrangement must exhibit a “minimum flavour of creativity” derived from the author’s skill and judgement, surpassing mere labour and capital. An indie game developer asserting that a clone replicated its configuration of icons and colour palettes would have to convince an Indian court that this configuration possesses a “flavour of creativity”. This is a considerably harder standard to meet than the Ninth Circuit’s willingness to recognise protectable expression in the combination of generic elements. For Indian game developers and publishers, protection over the selection and arrangement will be an ineffective recourse under Indian copyright law.
My Takeaways from the Conference
On the classification of video games, it is clear that several jurisdictions are already moving to recognise video games as composite works that warrant unified protection. Indian courts can achieve a similar outcome by reading Section 2(f) of the Copyright Act, 1957 purposively. The provision defines “cinematograph film” to include any work produced by a process analogous to cinematography. Section 13(4) further helps preserve copyrights subsisting in the underlying code, art, and music, so the multi-layered character of the game is not collapsed in the process. This route, anchored as it is in Indian statutory text, can achieve much the same outcome that the European Union has arrived at, but without the awkwardness of importing foreign elements into the domestic regime.
On the selection-and-arrangement doctrine, the application of Eastern Book Company in the gaming context calls for recalibration. The “minimum flavour of creativity” test, designed for headnotes and law reports, sits awkwardly against the kind of compilation-of-mechanics-and-aesthetics claim a game developer, whose game was copied, would bring in. Indian courts hearing video game disputes would do well to grant protection over such configurations specifically for the gaming context, as a measure against free-riding and cloning in the industry. While courts may or may not recalibrate “selection and arrangement doctrine” in India for video games, they can still proactively extend protection over specific configurations through the avenues available under, and subject to, the Designs Act, 2000.
The Designs Act, 2000 offers an alternative route to protection, particularly in light of the
recent Calcutta High Court judgement in NEC Corporation v. The Controller of Patents and Designs (2026 SCC OnLine Cal 1652) holding that GUIs are not categorically excluded from registration under the Designs Act and the DPIIT’s concept note, proposing to extend design protection particularly to animations, in-game skins, and other digital assets.
Lastly, on the enforcement side, Indian developers and publishers should not overlook non-judicial avenues. The conference featured a presentation on the WIPO Arbitration and Mediation Center’s ADR mechanisms tailored to video games and esports, and the recently launched International Games and Esports Tribunal (IGET). For an industry whose disputes are inherently transnational, forums of this kind offer speed, technical expertise, and confidentiality that domestic courts cannot easily replicate.
Indian developers are building original IP at scale, and the disputes will follow. I believe India has the statutory tools to shape this jurisprudence ahead of the litigation curve, but only if the courts and the legislature are willing to take them up.
